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So I Don’t Like Patents Much; Am I Wrong?

First of all, I have nothing against the concept of intellectual property, or of paying for it, or of protecting it.  You are reading the words of 1 out of probably 2 or 3 people on the planet who has purchased a license for WinZip!  That’s dedication to IP.

My problem is that I don’t think patents do a particularly good job of protecting IP. The way patents work is: you reveal your invention to everyone and then count on a system that allocates IP protection to the wealthiest to protect your disclosure.  How could such a system help the up-and-comer?

(This is of course a fashionable view where I come from: Silicon Valley.  Just like everyone there is a “healing power of greed” type of ur-liberatrian, everyone there believes that patents are a way to stifle innovation, not protect it.  But just because it’s fashionable doesn’t mean it’s wrong.)

The current system helps the rich at the expense of the poor because the main muscle behind the protection system is litigation, a pay-to-play game that coddles either big players with big legal staffs and big legal budgets or else “patent trolls” with the equivalent of programmed trading in vague patent language.  Grifters and fat cats, in a word, but not the common working stiff of the IP world, the lone inventor in the paradigmatic garage.

By delaying adjudication of the validity of a patent until the very end of the process, the current IP system practically guarantees a suboptimal result.  When I was making software, we tested for bugs as early in the process as we could.  The cost of a bug goes up dizzyingly as you discover it later and later in the software development process.

It’s so in the patent process as well.  If you discovered flaws in the claims of a patent application early, you would save a lot of money.

So how to do it?  For software, we require unit testing (which is testing a software module before it is integrated with others) and peer review (whose apotheosis is “agile programming”, where all software is written simultaneously by two coders).

Does the current patent process have analogs for these quality measures?  I don’t think so.

What do you think?  Tell me how I’m wrong.

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